CII-DIPP IPR Awaireness Seminar 28th January 2009

Importance of Copyright in
India and Abroad

CII-DIIP IPR awaireness seminar 28th January 2009
Dr. Tabrez Ahmad
Associate Professor of Law, KIIT Law School, KIIT
University, Bhubaneswar
Dr. Tabrez Ahmad, KLS, BBSR

http://iplexindia.blogspot.com 28th January 2009 1
Reasons to protect Copyright
 To give statutory expression to the moral and
economic rights of creators in their creations
and such rights of public in access to those
creations
 To promote creativity and the dissemination
and application of its results and to

encourage fair trading which would
contribute to economic and social
development

Characteristics of Copyrights
 Statutory rights
 Limited in time
 Territorial In application

Copyright give right to control the
activities of others-implications
 Rights granted are essentially negative
 The right owner does not need the right in
order to exploit a market for its goods or

services
 The right gives no liberty to ignore the rights
of other individuals ( including their

intellectual property ) or to override public
liabilities
 Does not confer on right owners products any
privileged position in international trade

International Copyright regime
 Regulated by conventions/Treaties
 Principal Treaties
◦ Berne Convention for the Protection of Literary and

Artistic Works
◦ Rome Convention
◦ Universal Copyright Convention
◦ WIPO- created in 1967 governs WCT and WPPT
India is not yet party to these treaties
 TRIPS Agreement- outside the purview of the
WIPO

India and TRIPS
 Ratified the WTO Agreement in December
1994 and thus became a party to the TRIPS
 Obliged to make its IP laws TRIPS compliant
 IP laws amended/new legislations enacted in
certain areas

Scope of copyright
 Subsists in Expression
 Not in
◦ Ideas
◦ Procedure
◦ Methods of operation
◦ Mathematical concepts

Subject matter of copyright
 Writings, including scientific and technical
texts and computer programmes
 Databases that are original due to the
selection or arrangement of their contents

 Musical works
 Audiovisual works
 Works of fine arts, including drawings,
paintings and photographs

Subject matter of Related Rights
 Contributions of others who add value in the
presentation of literary and artistic works to
the public: performing artists, such as actors,
dancers, singers and musicians; the
producers of phonograms, including CDs;
and broadcasting organizations

 TRIPS require compliance with the provisions
of Berne Convention
 India is a party to the Berne Convention ,
(1885) since 1923 and also the Universal

Copyright Convention, 1952
 Law on copyright in India in accordance with
the international standards as laid down in

copyright conventions

Copyright Law in India
 Copyright Act, 1957 is totally TRIPS compliant
after the 1999 Amendment
 Accords protection to computer programs
(since 1984)
 With the advancement of technology,
Copyright laws in India have also been

changing to keep pace with the times.
 The Copyright Act, 1957 was enacted and
came into force on the 21st of January 1958.

 In its Objects and Reasons the legislature recognized
that "new and advanced means of communications
like broadcasting, litho-photography, etc." call for
certain amendments in the existing laws (Copyright
Act, 1911).
 The legislature also commented that "adequate
provisions have to be made for fulfillment of

international obligations in the field of copyright
which India must accept". It is in this year (1957)
that cinematograph films derived separate
copyrights apart from its various components,
namely, story, music etc.

 The Indian judiciary has also come forward to
protect copyrights. The importance of copyright
laws was aptly enunciated by Hon’ble Fazal Ali, J.
of the Supreme Court of India in R.G.Anand Vs
Delux Films. (1978) 4 SCC 118, The court held :
 “it seems to us that the fundamental idea of
violation of copyright or imitation is the violation
of the Eighth Commandment : "Thou shall not
steal" which forms the moral basis of the
protective provisions of The Copyright Act."

 The Supreme Court, recognised that
copyrighted materials are prepared after
expending a great deal of labour, energy,
time and ability. If any other person is
allowed to appropriate the labours of the
copyrighted work, his act amounts to theft by
depriving the original owner of the copyright
of the product of his labour.

 The laws have thereafter been subjected to certain
changes.
 It was Amended in1984, which specifically
addressed the issue of piracy.
 The Statement of Objects and Reasons to the
amendment acknowledged piracy as a "global
problem due to the rapid advances in technology".
 Besides addressing the loss in the form of
royalties to the legitimate copyright owners, the
legislature also realized the
 losses to the exchequer by way of tax evasion.

 Commenting specifically on motion pictures and sound recordings, K
Ramaswamy & G.B.Patnaik JJ, of the Supreme Court in State of Andhra
Pradesh v Nagoti Venkataramana, while commenting upon the 1984
amendments in The Copyright Act held :
 "The object of amending The Copyright Act by Act amendment 65 of
1984 was to prevent piracy which became a global problem due to rapid
advances in technology. The legislature intended to prevent piracy and
punish the pirates protecting copyrights.
 The law, therefore, came to be amended introducing Section 52-A.
Thereafter, the piracy of cinematograph films and of sound recordings
etc. could be satisfactorily prevented.
 Moreover, the object of the pirate is to make quick money and avoid
payment of legitimate taxes and royalties. The uncertified films are
being exhibited on a large scale. Mushrooming growth of video parlours
has sprung up all over the country exhibiting such films recorded on
video tapes by charging admission fee from the visitors. Therefore,
apart from increasing the penalty of punishment under law it also
provides the declaration on the offence of infringement and video films
to display certain information on the recorded video films and
containers thereof."

 Certain relevant portions from the Object and Reasons for the amendment are
reproduced below :
 "….recorded music and video cassettes of films and TV programmes are
reproduced, distributed and sold on a massive scale in many parts of the world
without any remuneration to the authors, artistes, publishers and producers
concerned. The emergence of new techniques of recordings, fixation and
reproduction of audio programmes, combined with the advent of video
technology have greatly helped the pirates. It is estimated that the losses to the
film producers and other owners of copyright amount to several crores of
rupees.
 The loss to Government in terms of tax evasion also amounts to crores of
rupees. In addition, because of the recent video boom in the country, there are
reports that uncertified video films are being exhibited on a large scale. A large
number of video parlours have also sprung up all over the country and they
exhibit such films recorded on video tapes by charging admission fees from their
clients.
 In view of these circumstances, it is proposed to amend the Copyright Act, 1957,
suitably to combat effectively the piracy that is prevalent in the country"

 In its effort to address the above issues, by way of the
amendments, the following changes were incorporated in
the Act, namely . :--
◦ i. the punishment provided for the infringement of the copyright
was enhanced to a maximum of three years, with a minimum
punishment of imprisonment of six months, and a fine upto to Rs.
2 lakhs, with a minimum of Rs. 50,000/-.; An enhanced
punishment in the case of second and subsequent convictions was
also provided for;
◦ ii. The provisions of the Act were now specifically made
applicable to video films and compute programes;
◦ iii. The producers of records and video films were now under a
statutory obligation to display certain information in the records,
video films and containers thereof, which included the name of the
copyright owner, year of first publication etc.

 Copyright law, amended in June 1994, became effective
on May 10, 1995 and established an entirely new
potential for reducing piracy in India. According to the
Statement of Object and Reasons, the legislature
recognized that "effective copyright protection promotes
and rewards human creativity and is, in modern society,
an indispensable support for intellectual, cultural and
economic activity. The legislature further recognized
that copyright law promotes the creation of literary,
artistic, dramatic and musical works, cinematograph
films and sound recordings by providing certain
exclusive rights to their authors and creators

 It was felt that the present Act needs revamping
on the following grounds :
◦ to extend more effective protection to owners of
copyright and related rights in the context of
technological developments affecting the reproduction
of words by, inter alia, bringing within the scope of
copyright the subsequent hire or sale of copies of
cinematograph films, computer programmes and sound
recordings.
◦ to further clarify the law in respect of cable, satellite and
other means of simultaneous communication of works to
more than one household or private place of residence,
including the residential rooms of a hotel or a hostel.

 To make provisions for licenses whereby the reproduction of
works by reprographic equipment or by means of devices such
as tape recorders and video cassette recorders, where such
reproduction would not under the existing law be
infringement of copyright, shall be subject to payment or
remuneration to copyright owners by means of a levy on such
equipment.
 The law protects cinematograph films as a distinct work,
giving the producer of the film the exclusive rights
◦ i. to make a copy of the film, including a photograph of any image
forming part thereof;
◦ ii. to sell or give on hire, or offer for sale or hire, any copy of the film
regardless of whether such copy has been sold or given on hire on
earlier occasions;
◦ iii. to communicate the film to the public

 India, being a member of two of the major copyright
conventions of the world (The Berne Convention and The
Universal Copyright Convention),
 Indian works and works of Indian authors are accorded
copyright protection in all major countries of the world.

Likewise, foreign works and works of foreign authors are
accorded the same protection as Indian works.
 In addition to the law bringing India newly into
compliance with its substantive TRIPS obligations in the

copyright area, the law provides for new minimum
criminal penalties including a mandatory minimum jail
term which, if implemented, will go far to controlling
piracy.

 The Cable Televisions Networks (Regulation) Act was
enacted in 1995 to control the "cultural invasion" by
transmittal of signals of foreign televisions. The statement
of Objects and Reasons of the Act proceeds on the
presumption that subscribers and cable operators are not
aware of their rights, responsibilities and obligations in
respect of exhibition of uncertified films and the
protection of subscribers from anti-national broadcasts (It
says so in so many words). Use of material protected by
copyright also finds a mention. Under the Act, a procedure
for registration of cable operators was provided for the
first time. Running a cable network without registration
now invites imprisonment and penalties.

 The Act amended in the year 2000 to strengthen
enforcement against piracy on cable networks.
Additional “authorized officers” were empowered to
supervise these networks.
 The 2000 Amendment for the first time recognized the
fact that cable operators also require copyright licenses

for exhibiting software on their networks and exhibition
of any program without the express license of the
copyright owner was for the first time made an offence
under this legislation. The affect of these legislative
changes is still to be seen on the ground level. Civil
and criminal enforcement actions at present are the only
form of effective control of this form of piracy.

Challenges Posed by Internet
 Copyright Act does not contain provisions to
face the challenges posed by the Internet.
 In 1996, WIPO adopted Internet Treaties:
 WCT and WPPT India is not party to these
treaties

Emerging Challenges
 Copyright in Blogs
 Music Piracy- Napster, KAZA, Gnutella, to
Grokster
 Copyright and open source license
 Software Piracy
 File sharing- Bulletin board system, orkut,
face book etc.

Measures taken by the Govt.
 The government has initiated some measures for
better enforcement of copyright laws. A summary
of some of these measures is given below :
 The Department of Education, Ministry of Human
resource Development, Government of India has

constituted a Copyright Enforcement Advisory
Council (CEAC). The CEAC is reconstituted from
time to time to review periodically the progress
of enforcement of the Copyright Act and to
advise the government on measures for
improving the enforcement.

 Creation of separate cells in state police
headquarters. States have also been advised
to designate a nodal officer for copyright
enforcement to facilitate easy interaction by
copyright industry organizations and
copyright owners.

 Encouraging setting up of collective administration societies and
organization of seminars and workshops to create greater
awareness about copyright law among the enforcement personnel
and the general public. For collective administration of copyright,
copyright societies are set up for different classes of works.
 At present there are three registered copyright societies. These are
the
 Society for Copyright Regulations of Indian Producers of Films &
Television (SCRIPT) for cinematographic films,
 Indian Performing Rights Society Limited (IPRS) for musical works
and
 Phonographic Performance Limited (PPL) for sound recordings.
 There is now an urgent need for all the constituent parts, i.e. the
rights owners, the government, the enforcement agencies and the
judiciary, to work jointly in eradicating the menace of piracy.

Copyright in International Perspective
 Let us take then the example from the United States. The
story is from the period when it had just obtained its
independence and was in the stage of establishing its own
economic, social and legal system. As far as copyright was
concerned the first idea – which, at the first sight, perhaps
seemed to be attractive and clever – was to promote local
culture and creativity through granting copyright protection
for the works of domestic authors, leaving, however, foreign
works –
 first of all works published in England – unprotected. The
results proved to be catastrophic from the viewpoint of what
the isolationist approach to copyright was believed to serve;
from the viewpoint of national culture and creativity..

 Those publishers – according to our present
comparative scale, certainly small or, at least,
medium-sized ones – that had chosen to
invest in the publication of some still less
well-known American authors were unable to
compete with the others which achieved easy
and safe success by publishing unprotected
works of famous and popular English writers
and poets without any need whatsoever for
bothering with obtaining authorization and
paying remuneration to them
 The then “SME” publishers supporting local creativity either went
bankrupt or changed publishing policy in abandoning their
patriotic extravaganza.
 This negative effect of the introverted copyright policy was
recognized quite early.

 Copyright legislation was changed , updated and – through
appropriate agreements – extended to English works. The result

of this step is well known: the dying “SME” publishers specialized
in publishing works of domestic authors received a huge doze of
new opportunities for competing in the market and succeed . This
wise decision to change copyright policy might even be regarded
as the beginning leading to the enormous success story of the
U.S. cultural industries (about which, of course, it would be
difficult to say that they are now dominated by SMEs).

 The breakthrough towards copyright as a generally
accepted option took place in February 1985, at a
meeting organized in Geneva at the WIPO
headquarters. It was due to the excellent working
paper, to the thorough discussion at the meeting,
but also to the existing positive examples to which
the working paper had been able to refer. At that
time, in addition to some positive developments in
the case law of some countries, there were already
five countries where statutory law explicitly
recognized the copyright protection of computer
programs.

 This evolving scenario was recognized and duly taken into
account in the European Community in the framework of the
preparation and adoption of the directive on the legal
protection of computer programs. The directive (Council
Directive No. 91/250/EEC of 14 May 1991) contains certain
provisions to protect users of computer programs against the
dangers of overprotection in favor of software developers: such
as the ones guaranteeing for the lawful owners of copies of
computer programs to be able to use it for the intended
purpose, including error protection (Article 5(1)), to make
back-up copies (Article 5(2)) and
 to observe, study or test the functioning of the program in
order to determine the ideas and
 principles underlining any element of the program (Article 5(3)).

 The latter provision has already quite a
substantial relevance also for the possible
 competitors – among them many SMEs -- in
the software markets. However, what is

particularly important for them – especially
for the more vulnerable SMEs of the field – is
the regulation of the issue of “reverse
engineering” or “decompilation” of programs
in Article 6 of the directive.

 This regulation became necessary in order to eliminate the possibility
of some anticompetitive practices of owners of certain widely used
computer programs based on the exclusive right of reproduction
and/or the exclusive right of adaptation (and translation) granted to
them by Article 4 of the directive. In the absence of an appropriate
regulation, owners of rights in such programs would have been able to
prohibit the transformation of the programs (only made available by
them in object code form) into source code form (this transformation
is called “decompilation” – or “reverse engineering” of the program).
 And without such decompilation, the potential competitors would not
have been able to develop and make any computer programs that
would have been able to function together – “interoperate” -- with the
existing and widely used, quasi standard programs. Such a
consequence would have been, of course, particularly disastrous for
SMEs of the software development sector.

 The regulation was not easy. There was quite an important
resistance against any specific rules authorizing decompilation,
since some major software houses were afraid that the new
norms may be used also for simple piratical activities.
 It seems, however, that the provisions in Article 6 of the
directive have established an appropriate balance between
conflicting legitimate interests and eliminated the possible
dangers as much as possible.
 The said Article of the directive provides that the authorization
of the rightholder is not required where reproduction of the
code and “translation” of its form are indispensable to obtain
the information necessary to achieve the interoperability of an
independently created computer program with other programs,
provided that certain conditions are met.

 These conditions serve as guarantees that the limited freedom granted
in this field does not prejudice the legitimate interests of owners of
rights. (The conditions are as follows: (a) these acts are performed by
the licensee or by another person having a right to use a copy of a
program, or on their behalf by a person authorized to do so; (b) the
information necessary to achieve interoperability has not previously
been readily available; (c) these acts are confined to the parts of the
original program which are necessary to achieve interoperability; (d)
the information obtained must not be used for goals other than to
achieve the interoperability of the independently created computer
program; (e) it must not be given to others except when necessary for
the interoperability of the independently created computer program;
and (f) must not be used for the development, production or
marketing of a computer program
substantially similar in its expression, or for any other act which
infringes copyright.)

 This well-balanced and precise regulation has
made it possible – not only in the European
Community but also in other countries where
this model has been taken over and applied –
for software-developer SMEs to continue and
extend their creative activities with a chance
to succeed, and many of them have used this
opportunity with great efficiency.
 Dangers of piracy: SMEs as candidates to
become the first victims

Piracy may have a number of possible negative and
even disastrous consequences: such as completely
neglecting copyright and related rights which, if not
duly countered, may not
only deny rights to creators and producers, but now,
with the teeth these rights have obtained through the
TRIPS Agreement, eventually may also lead to serious
trade sanctions against the country concerned, or
such as the distribution of low-level quality products
without any follow-up service whatsoever, tax
evasion and contribution to financing other forms of
organized crime or subversive activities.

 A further – and, from the viewpoint of national culture, the most
detrimental – consequence is that the commercial activities of pirates
undermine the chance on the market for those who publish and
distribute works in a legitimate way, and take the risk to invest into
the promotion of new, still less known talents, mainly national
authors. They have no real chance to succeed since the market is
inundated with cheap pirated publications (cheaper for at least three
reasons: first, because pirates do not take any risk; they simply
publish those works and recordings which have turned out to be
great success; second, because they do not have administrative costs
emerging in connection with obtaining authorization from the right
owners; and, third, of course, because they do not pay remuneration)
with which they are unable to compete. In general, SMEs operating in
copyright-related fields are among the first enterprises to lose and
go bankrupt as a result of wide-spread piracy.

 The great problem from the viewpoint of
national culture is that pirates tend to publish
and distribute foreign works having proved to be
successful and gotten famous on the ever more
globalized world market. National creativity and
local authors are promoted by lawful publishers
– many of them in the SMEs category – and it is
just that category which is on the losing side.
This may very much result in poorer and
stagnant national culture and the fading away of
the diversity of national identities.

Conclusion
 Balancing of interest of various stake holders
◦ Right holders and fair use
 India’s greatest potential lies in its copyright related
industries. India is the largest film-producing nation
in the world. It has given the world the largest
number of computer software engineers and its
music is enjoyed all over, in particular in South and
South East Asia. It has a vibrant publishing industry
with publications in over 26 official languages. All
these industries crave protection of the laws. If
these laws and their enforcement are strengthened,
it is only India which will benefit.

Thanks


CII-DIPP IPR Awaireness Seminar 28th January 2009

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

CII-DIPP IPR Awaireness Seminar 28th January 2009

Uploaded by

Copyright:

Available Formats

Importance of Copyright in

India and Abroad

Dr. Tabrez Ahmad, KLS, BBSR

and application of its results and to

Dr. Tabrez Ahmad, KLS, BBSR

Dr. Tabrez Ahmad, KLS, BBSR

order to exploit a market for its goods or

of other individuals ( including their

privileged position in international trade

Dr. Tabrez Ahmad, KLS, BBSR

◦ Berne Convention for the Protection of Literary and

Dr. Tabrez Ahmad, KLS, BBSR

Dr. Tabrez Ahmad, KLS, BBSR

Dr. Tabrez Ahmad, KLS, BBSR

selection or arrangement of their contents

paintings and photographs

Dr. Tabrez Ahmad, KLS, BBSR

Dr. Tabrez Ahmad, KLS, BBSR

(1885) since 1923 and also the Universal

the international standards as laid down in

Dr. Tabrez Ahmad, KLS, BBSR

Copyright laws in India have also been

came into force on the 21st of January 1958.

Dr. Tabrez Ahmad, KLS, BBSR

provisions have to be made for fulfillment of

Dr. Tabrez Ahmad, KLS, BBSR

Dr. Tabrez Ahmad, KLS, BBSR

Dr. Tabrez Ahmad, KLS, BBSR

Dr. Tabrez Ahmad, KLS, BBSR

Dr. Tabrez Ahmad, KLS, BBSR

Dr. Tabrez Ahmad, KLS, BBSR

Dr. Tabrez Ahmad, KLS, BBSR

Dr. Tabrez Ahmad, KLS, BBSR

Dr. Tabrez Ahmad, KLS, BBSR

Dr. Tabrez Ahmad, KLS, BBSR

copyright protection in all major countries of the world.

compliance with its substantive TRIPS obligations in the

Dr. Tabrez Ahmad, KLS, BBSR

Dr. Tabrez Ahmad, KLS, BBSR

fact that cable operators also require copyright licenses

Dr. Tabrez Ahmad, KLS, BBSR

Dr. Tabrez Ahmad, KLS, BBSR

face book etc.

Dr. Tabrez Ahmad, KLS, BBSR

resource Development, Government of India has

Dr. Tabrez Ahmad, KLS, BBSR

Dr. Tabrez Ahmad, KLS, BBSR

Dr. Tabrez Ahmad, KLS, BBSR

Dr. Tabrez Ahmad, KLS, BBSR

recognized quite early.

appropriate agreements – extended to English works. The result

Dr. Tabrez Ahmad, KLS, BBSR

Dr. Tabrez Ahmad, KLS, BBSR

Dr. Tabrez Ahmad, KLS, BBSR

the software markets. However, what is

Dr. Tabrez Ahmad, KLS, BBSR

Dr. Tabrez Ahmad, KLS, BBSR

Dr. Tabrez Ahmad, KLS, BBSR

Dr. Tabrez Ahmad, KLS, BBSR

become the first victims

Dr. Tabrez Ahmad, KLS, BBSR

Dr. Tabrez Ahmad, KLS, BBSR

Dr. Tabrez Ahmad, KLS, BBSR

Dr. Tabrez Ahmad, KLS, BBSR